The Gauteng High Court in Johannesburg on Thursday dismissed an application by the Gupta family for leave to appeal an order that their aeroplane be grounded.

On March 19, the same court ordered the Gupta family to deliver a Bombadier Global 6000 aircraft to Lanseria International Airport within 15 calendar days. The plane was spotted at the airport earlier in April.

The ruling came after Export Development Canada (EDC) and Stoneriver approached the court with an urgent application earlier in March asking it to ground the aircraft.

The family had a lease agreement with EDC and Stoneriver for the aeroplane.

They approached the court for leave to appeal the judgment, arguing that a different court would reach a different decision.

Merits of the argument

Advocate Owen Cook, for Oakbay Investments and Westdawn Investments, argued that the grounding of the aeroplane in the application was not part of the issues currently before the courts in England and Wales.

“The order to return the aircraft to South Africa is not part of the relief sought in the courts in England and Wales,” he said.

Cook further submitted that “the fundamental element of the complaint” was that Judge Fayeeza Kathree-Setiloane did not address the merits of the argument when she handed down the previous judgment.

Cook also submitted that the argument that there was irreparable and reputational harm was irrelevant and that the removal of Atul Gupta as chair of Oakbay was a “petty” reason for EDC to terminate its lease agreement with the controversial family.

In her judgment, Kathree-Setiloane found: “It is common cause that Mr Atul Gupta ceased to be the chairman of Oakbay before the repayment date of October 16 2017, and that he was not the chairman of Oakbay when the December notice was issued.

“On each of the subsequent repayment dates, Oakbay represented and warranted that Mr Atul Gupta was the chairman of Oakbay.”

Advocate Kameel Premhid, for Atul and Chetali Gupta, argued that it was not under Kathree-Setiloane’s jurisdiction to make a decision on the matter.

He added that the consequences of Kathree-Setiloane’s decision was that the English courts “might turn around and say: ‘There is no basis for this.’”

Advocate Alfred Cockrell, for EDC and Stoneriver, described the arguments put forth by Cook and Premhid as “schizophrenic” and said they “couldn’t have it both ways”.

Cockrell argued that the judge should consider two aspects - whether or not the interim order that was granted was appealable, and whether there was any likelihood of success on appeal.

He also submitted that it was not a “petty” to end the lease agreement with the Gupta family after “Mr Gupta ceased to be the chairman” as it was one of the events of default on the loan agreement.

On Thursday, Kathree-Setiloane said it was not in the interests of justice to grant the application for leave to appeal.